Dr Kalu v Brighton & Sussex University Hospitals NHS Trust & Others

The Trust had two hospital sites at Brighton and Haywards Heath. Within the Obstetrics and Gynaecology department four consultants worked at Haywards Heath, three of whom were of BME ethnicity and fourth was about to retire, while the other consultants who were mostly white worked at Brighton. The Brighton site was the high risk site and had extra facilities including a special department for dealing with premature babies born at under 24 weeks’ gestation. At a time when a swine flu pandemic was feared the Trust was required to draw up contingency plans to cover the remote situation where it was necessary because of staff shortage to close a site and if only one of the 16 registrars could turn out for duty. A policy was proposed and agreed in principle, though never implemented, whereby Brighton was treated as the priority site so that where the one available registrar was based at Haywards Heath that registrar would be moved to Brighton and one of the consultants at Haywards Heath would be required to cover for the absent registrar. The three BME consultants at Haywards Heath (including K) objected that this was unfair. K then brought proceedings against the Trust and four white consultants working at Brighton complaining of racial discrimination and victimisation for having brought three earlier claims against the Trust for racial discrimination which had been compromised.

Less than four weeks before the hearing K asked that the bundles from his three previous tribunal cases be added to the agreed trial bundle to show that a culture of racial discrimination pervaded the Trust and that the individual respondents had contributed to that state of affairs. The respondents objected to the late introduction of voluminous bundles. Six days before the hearing K served two witness statements and the respondents promptly applied to exclude parts of those statements that related to the proceedings which had previously been settled on the grounds of res judicata and/or irrelevance to the issues to be determined in the instant case.

ET ruled at the commencement of the hearing that parts of K’s witness statement relating to background evidence should be excluded and went on to dismiss his claims in a reserved judgment. K appealed. His appeal was reduced to two grounds, whether ET (1) wrongly prevented him from adducing background evidence and (2) erred in finding that the four named respondents were not acceptable comparators since they were not in similar circumstances.

HELD (Langstaff J. dissenting) that ET had erred in refusing to admit relevant and material evidence so that the claim would have to be determined afresh by a different tribunal. On the comparator point, while ET’s approach was not sound, nonetheless its finding that the alleged discriminatory act had nothing to do with race was unaffected. EAT has granted respondents permission to appeal against majority decision regarding the exclusion of evidence by ET.

Comment:

EAT fully endorsed the ten propositions set out by Underhill J. in Gillespie [2011] ICR 192 at paragraph 13 concerning the admissibility of evidence. The legal test is whether evidence is of sufficient relevance but a tribunal has a discretion, in accordance with the overriding objective, to exclude relevant evidence which is unnecessarily repetitive or of only marginal relevance in the interests of proper modern day case management.

In this case the EAT unanimously agreed that ET was fully entitled to exclude certain parts of the claimant’s witness statement. ET did not exclude all background evidence but permitted the claimant to give evidence that he had brought claims in the past which had been compromised. That satisfied the President that ET had carefully considered the boundaries of exclusion. Insofar as Underhill J. had urged judges to grasp the nettle and not to shrink from excluding evidence that will not be of material assistance in deciding the issues in the case and the admission of which would cause inconvenience, expense, delay or oppression, the President felt that as a consequence an appeal court should be slow to interfere with an ET’s exercise of discretion to do so. He did not think that the ET’s exercise of discretion in the instant case was shown to be perverse and he would have dismissed the appeal on this ground. The lay members, on the other hand, were not satisfied that the ET had properly assessed the relevance of the evidence to the claimant’s case before reaching its conclusion.

This case highlights ET’s discretionary power to exclude evidence which though it might potentially be of some relevance yet its admission would be disproportionate in terms of how much it could really assist a tribunal in deciding the issues before it. Notwithstanding the outcome of this appeal based on the views of the lay members, there is a judicial shift away from the Anya approach which seemed to encourage the admission of a virtually unlimited amount of background evidence. ETs may in future be more ready to exclude evidence that is of only marginal relevance.

In relation to the comparator point the EAT judgment indicates that while special care may need to be taken to identify an appropriate comparator according to the context of the particular issues before the tribunal and the purpose of the inquiry, this may not be determinative. It may be intertwined with the “reason why” question or addressing the latter question may otherwise provide a sufficient answer in itself to determining whether or not there has been unlawful discrimination.

Here ET found that the relevant circumstances of the four named respondents and of the claimant were not similar as the locations they were employed at were materially different in that Brighton was chosen as the priority site because it had additional facilities. Location was also a significant distinction when it came to the race of those concerned i.e. disadvantaged BME consultants at one and comparators at other so that claimant could argue that location was a surrogate for race. Location could not therefore be regarded as a relevant material circumstance for the purpose of inquiring into whether a consultant at Haywards Heath had been discriminated against on the grounds of race because of a policy adversely affecting those who were there. But the factual conclusion that the race of the claimant had nothing to do with the adoption of the policy provided a complete answer. In short, where the reason for the treatment is established to the satisfaction of the tribunal it becomes unnecessary to ask for a real or an hypothetical comparator.

The four individual consultants joined as respondents were represented by Helen Bell before the employment tribunal and by Daniel Matovu before the EAT, instructed by Irwin Mitchell LLP.